PDG, Inc. v. Abilene Village, LLC ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00118-CV
PDG, INC., APPELLANT
V.
ABILENE VILLAGE, LLC, APPELLEE
On Appeal from the 42nd District Court1
Taylor County, Texas
Trial Court No. 50228-A, Honorable James Eidson, Presiding
April 17, 2019
ORDER OF ABATEMENT AND REMAND
Before CAMPBELL and PIRTLE and PARKER, JJ.
Appellant, PDG, Inc., appeals a no-answer default judgment granted in favor of
appellee, Abilene Village, LLC. We remand the cause to the trial court to enter a finding
of the date PDG received notice or acquired actual knowledge of the default judgment
per Texas Rule of Appellate Procedure 4.2(c).
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This appeal was transferred to this Court from the Eleventh Court of Appeals by order of the Texas
Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
The trial court signed a default judgment on November 30, 2018. On February 13,
2019, PDG filed a verified motion to extend the post-judgment deadlines pursuant to
Texas Rule of Civil Procedure 306a.5, a motion for new trial, and a motion to set aside
the default judgment. In its motion, PDG asserted that it did not receive notice or acquire
actual knowledge of the judgment until January 15, 2019, the day its attorneys discovered
that a default judgment was signed. By an agreed order, the trial court granted PDG’s
motion to extend the post-judgment deadlines, finding that (a) the notice of judgment was
not sent to PDG as required by Texas Rule of Civil Procedure 239a, and (b) “Plaintiff
Abilene Village, LLC agree[d] to the extension of post-judgment deadlines as requested
by Defendant PDG, Inc.” The trial court later denied PDG’s motion for new trial and
motion to set aside the default judgment. PDG filed a notice of appeal on March 25, 2019.
A notice of appeal is due within thirty days after the judgment is signed or within
ninety days if a motion for new trial, motion to modify the judgment, motion to reinstate,
or request for findings is timely filed. See TEX. R. APP. P. 26.1(a). If a party does not
receive notice or acquire actual knowledge of a judgment within twenty days of its signing,
the period to file a notice of appeal will not begin to run until the date the party received
notice or acquired actual knowledge of the judgment. TEX. R. APP. P. 4.2(a); TEX. R. CIV.
P. 306a.4. To gain this additional time, a party must file a sworn motion in compliance
with Rule of Civil Procedure 306a.5 and obtain a written order that finds the date when
the party or the party’s attorney first received notice or acquired actual knowledge that
the judgment was signed. TEX. R. APP. P. 4.2(b), (c). A 306a.5 motion must be filed while
the trial court retains plenary power, measured from the date the movant received notice
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of the judgment as determined by the trial court. John v. Marshall Health Servs., Inc., 58
S.W.3d 738, 741 (Tex. 2001) (per curiam).
The trial court granted PDG’s motion to extend the post-judgment deadlines
pursuant to Rule 306a.5, but did not make a finding of the date PDG first received notice
or acquired actual knowledge of the default judgment. Without this finding, we are unable
to determine whether PDG filed its notice of appeal timely. See TEX. R. APP. P. 26.1(a),
4.2.
Accordingly, we abate this appeal and remand the cause to the trial court to
conduct a hearing to determine the date on which PDG, or its attorney, first received
notice or acquired actual knowledge that the judgment was signed. See TEX. R. APP. P.
4.2; TEX. R. CIV. P. 306a.4, 306a.5; Fid. & Guar. Ins. Co. v. Drewery Constr. Co., Inc., No.
12-04-00084-CV, 2004 Tex. App. LEXIS 4484, at *2-3 (Tex. App.—Tyler May 12, 2004,
order) (mem. op.) (remanding cause to the trial court to enter a finding in accordance with
Appellate Rule 4.2(c)). The trial court shall enter a written order of its findings and the
order shall be included in a supplemental clerk’s record filed with this Court by May 17,
2019. See TEX. R. APP. P. 4.2(c).
It is so ordered.
Per Curiam
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